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Insight
Court Awards Realtor Commission and Attorney’s Fees Despite Breach of Purchase Agreement
The owner of a strip mall retained a realtor to list available property in its shopping center. A purchase agreement was secured and set a deadline to complete the sale. When the purchaser did not complete the sale, the realtor sued the purchaser for lost commission. See Beau Box Commercial Real Estate, LLC v. Pennywise Solutions, Inc., 2019-0114 (La. App. 1 Cir. 10/23/19), 289 So. 3d 600. The case raised the issue of whether the realtor was a third-party beneficiary to the purchase agreement.
After the sale fell through, the realtor filed suit against the purchaser to recover commission for the sale of the property, attorney’s fees, and other costs. In response, the purchaser admitted to the breach of the purchase agreement but argued that the listing agent had no right to recover because it was not a party to the purchase agreement. The trial court disagreed and granted summary judgment in the realtor’s favor. The trial court held that the purchase agreement established a “stipulation pour autrui”(third-party benefit) for the realtor.
The court acknowledged that agents generally are not parties to purchase agreements. However, the language of the specific purchase agreement conferred a benefit in favor of both agents because it explicitly stated that a party defaulting on the purchase agreement “shall be liable” for realtor’s commissions, attorney’s fees, and costs incurred in the enforcement of the contract.
The court also rejected the purchaser’s second argument that it had to be “placed in default” before any cause of action could arise. In response, court found that, when a term for performance is fixed in a contract, the arrival of that term automatically puts the breaching party in default.
The result in Beau Box may be limited to its own facts. However, realtors and parties should now pay closer attention to the terms of purchase agreement, which can create benefits for non-parties to the contract.
Marty Golden has been practicing law based in Baton Rouge, Louisiana for over thirty years, concentrating in civil litigation primarily involving injuries, property damage, insurance coverage, and contract disputes. Much of his practice is defending and advising real estate agents in suits by property buyers and sellers, but Marty also defends other professionals, insurance companies, manufacturers, and business owners. Marty has a special interest in all things procedural, because they are the rules of the road for litigators and knowing them better than his opponent gives him a leg up in court.
Contracts
Property
Real Estate
Trial Court
Insight
CORPORATE DEPOSITIONS: Recent Amendment to Federal Rules Mark a Positive Change
Litigation is increasingly a “part of doing business.” In federal court, corporate depositions are governed by Federal Rule of Civil Procedure 30(b)(6) (frequently referred to as a “30(b)(6) deposition”). When a corporate representative is appointed to testify on behalf of a company, they are typically provided a deposition notice which identifies the subjects he or she will be asked to address in their testimony. However, the process is not always smooth when the parties disagree about what is fairly covered in the notice. A recent amendment to Rule 30 aims to improve the process.
Preparing for a 30(b)(6) deposition can be overwhelming and time-consuming. Often, the imprecise identification of subjects in the notice leaves the corporation wondering what the noticing party really seeks to explore or even who is the best individual to testify to the topics identified. The federal judiciary has observed that corporate representative(s) under the current practice are often unprepared to provide the necessary testimony and/or that the entity’s interpretation of the deposition topics does not match the intent of the noticing party. The result is aborted or suspended depositions, extended litigation, increased costs, and the birth of theories that the deponent intentionally obstructed the deposition, which is usually not the case.
To address these issues, effective December 1, 2020, Rule 30(b)(6) now reads as follows (changes in bold):
Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify. …
The recent amendment directs the serving party and the named organization to confer before or promptly after the notice or subpoena is served about the matters for examination. The intent is to “facilitate collaborative efforts” and to encourage “candid exchanges about the purposes of the deposition and the organization’s information structure [which] may clarify and focus the matters for examination and enable the organization to designate and to prepare an appropriate witness or witnesses, thereby avoiding later disagreements.” (Committee Notes; Rule 30). The Committee Notes even suggest that the notice of the deposition may be “refined as the parties confer.” The Committee Notes further provide that the obligation is to “confer in good faith,” not to reach agreement, and remind that “it may be desirable to seek guidance from the court.”
The recent changes to Rule 30 are subtle but may prove impactful. Because the new procedure is now in effect, we should know soon.
Federal Courts
Litigation
Insight
COVID-19 Case Presents Interesting Constitutional and Procedural Issues
COVID-19 stretched our legal system and raised questions not easily answered by existing law. One recent question surrounds a dispute between the Governor and the State Legislature regarding the constitutionality of the Governor’s proclamation of a public health emergency in response to COVID-19. Recently, in Governor John Bel Edwards v. Louisiana State Legislature, Louisiana House of Representatives, & Clay Schexnayder, in his official capacity as Speaker of the House of Representatives, 2020-CA-1407, the Louisiana Supreme Court was asked to gauge the validity of the legislature’s termination of Governor Edwards’ proclamation. However, the Court did not reach the constitutional questions and remanded the case.
The Governor filed suit to challenge the Legislature’s termination of his COVID-19 proclamation. He argued that the termination was null and void citing both constitutional and non-constitutional grounds. Because the trial court found the termination unconstitutional, it did not address the procedural and non-constitutional challenges raised.
On appeal, the Supreme Court held that the trial court erred in reaching the issue of constitutionality prior to determining whether the dispute could be resolved on non-constitutional grounds. Louisiana law dictates that courts should avoid decisions based upon constitutional grounds unless the constitutional issue is essential to resolution of the case. Although the issues to be addressed were important to the citizens of Louisiana, the Court stated “it is critical a case must reach this court in the proper procedural posture to warrant our review of a ruling on constitutionality.”
The case highlights the role of the Louisiana Supreme Court and reminds both attorneys and the public of how issues are addressed and decided. The Court was express that the issues presented in Edwards were novel and important and may ultimately be issues the high court will choose to address. However, the Court recognized that its powers of constitutional review are constrained by procedure. A civics lesson in the midst of the COVID-19 pandemic.
Virginia “Jenny” McLin is a partner at Keogh Cox who practices in the fields of corporate litigation, insurance defense and workers compensation defense. When she is not practicing law, Jenny can be found volunteering with the Junior League of Baton Rouge; cheering for the LSU Tigers with her husband Ryan; or shuffling her two kids to and from dance practice.
Constitutional Law
Louisiana Supreme Court
Insight
Keogh Cox Secures Dismissal Of Alleged Chemical / Environmental Exposure Case: Worker’s Compensation Immunity
In Million v. Exxon Mobil, et al., plaintiff was diagnosed with cancer and pulmonary embolisms in 2016. Plaintiff had worked in the chemical industry for 40 years. In his suit, filed in the United States Middle District Court, plaintiff alleged that long-term exposure to toxic chemicals during his employment caused his cancer. While the suit alleged that Million’s former employers created an unsafe work environment, he admitted in deposition that he was provided both safety equipment and safety training during his employment.
Andrew Blanchfield, managing partner at Keogh Cox, represented one of the former employers and filed a motion for summary judgment seeking to enforce the protections of Louisiana worker’s compensation law. Under the law, worker’s compensation benefits are generally an employee’s exclusive remedy against an employer for work-related injuries or illnesses. An employer is therefore entitled to immunity from tort claims unless the employee can prove that employer committed an “intentional act.”
To prevail under an intentional act theory, a plaintiff is required to show that the employer’s act was “intentional” and “substantially certain” to result in injury to the plaintiff. In support of the motion to enforce immunity, the former employers cited to plaintiff’s admissions in deposition as to the efforts made for his safety and to the absence of evidence sufficient to show intentional conduct substantially certain to cause injury. The district court granted the motion and dismissed plaintiff’s claims. This month, the dismissal was upheld by the United States Fifth Circuit Court of Appeal in Million v. Exxon Mobil Corp., Exxon Chem. Co./ Exxon Ref., No. 20-30002, 2020 WL 7054051 (5th Cir. Dec. 1, 2020).
This case illustrates the interplay between general Louisiana tort law and the Louisiana worker’s compensation law and shows that courts will require substantive evidence of an intentional act to maintain a tort suit against an otherwise immune employer.
Chelsea Payne is an associate at Keogh Cox and has been practicing for three years. Her practice mainly relates to construction law and complex litigation. Chelsea enjoys playing tennis and spending time with her family.
Injury
Workers' Compensation
Insight
“Collectibility” in Legal Malpractice: Can a client have greater rights against an attorney that existed in the underlying case?
It is well-established that a client in legal malpractice shall have no greater rights against their attorney than they had against the original defendant. That is, until the recent decision by the Supreme Court in Ewing v. Westport Insurance Corporation, 20-00339 (LA. 11/19/20), 2020 WL 6789490 where the Louisiana Supreme Court held that the “collectibility“ of the underlying judgment against the defendant is neither part of the plaintiff’s burden of proof nor the proper subject of an affirmative defense.
In Ewing, the defendant/attorney fax-filed a petition for damages but failed to forward the original petition within seven days as required by statute. As a result, the claim he sought to advance on behalf of Elaine Ewing prescribed. Ewing sued her attorney and his insurer.
Prior to trial, the tortfeasor testified that he would have filed for bankruptcy had an excess judgment been entered. On this basis, the defendants obtained a motion for summary judgment establishing that the underlying tortfeasor would have been unable to pay any amount above the $30,000 in available insurance coverage. Following trial, an award of $30,000 was entered in favor of the plaintiff and the plaintiff appealed.
The appellate court reversed citing to the decision in Rodriguez v. Traylor, 468 So.2d 1186, 1188 (La. 1985) which held that “the wealth or poverty of a party to a lawsuit is not a proper consideration in the determination of compensatory damages.“
The Supreme Court upheld the appellate opinion. In the analysis, Chief Justice Johnson on behalf of the majority also cited to the Rodriguez decision for the proposition that the wealth of the tortfeasor is not relevant to damages. The majority acknowledged that a majority of courts nationwide hold that the collectibility of a judgment is an essential element of a plaintiff’s legal malpractice case. It also observed “a growing trend” in other states to allow the defendant/attorney to plead collectability as an affirmative defense. Nevertheless, the Supreme Court in Ewing chose to follow neither position.
The defendants in Ewing did not argue that collectibility was part of the plaintiff’s burden. However, they did assert an affirmative defense on this basis. In rejecting this defense, the Ewing court found that nothing in statutory law of Louisiana limits damages based upon the collectibility of a judgment against a particular tortfeasor. In Ewing, it was established that the tortfeasor would have been immediately unable to pay an excess judgment. Nevertheless, the majority highlighted that a money judgment is valid for 10 years and may be revived for successive 10-year periods. As such, the court concluded that the money judgment has intrinsic value, regardless of immediate collectibility. To quote the majority, “impecunity is a snapshot in time.”
The concurring opinion by Justice Weimer reasons that there may be certain and rare cases where the underlying tortfeasor is truly judgment proof. In that circumstance, he writes that summary judgment in favor of the defendant may be appropriate but not under the record before the court.
Writing for the dissent, Justice Crain observed: “Thirty states have determined collectibility is relevant in a legal malpractice action. No state has reached a contrary conclusion, until now.” According to the majority, the absence of any statute making collectability a relevant consideration mandated the result under our civilian traditions. Justice Crain disagreed and argued that the majority opinion is inconsistent with the Code of Evidence articles which generally allow the admissibility of relevant evidence such as an inability to pay. La. L.C.E. art. 402. In support of his position, Justice Crain gave a hypothetical scenario involving an insolvent, uninsured driver who rear-ends a world-class professional athlete rendering him a paraplegic, resulting in damages and $50 million. About this hypothetical, he states:
“What did the plaintiff lose, or what harm did the lawyer cause the plaintiff, when the lawyer failed to preserve the claim against the insolvent, uninsured driver? The lawyer did not cause the paraplegia, nor did he caused a loss of $50 million, as that money was clearly uncollectible.“
To Justice Crain, the determinative question is the value of the lost judgment.
Insofar as the majority and concurring opinions highlight the absence of any statutes to support their conclusions, it would not be surprising for this issue to be considered by the legislature in coming years.
Collin is a Keogh Cox partner who litigates injury, commercial, and legal malpractice disputes. He lives in nearby Zachary, Louisiana with his wife Melissa and three all too active children. He is an outdoorsman, a tennis player, a cook, and a hobbyist writer.
This blog was written in partnership with Andrew "Drew" Blanchfield whose practice also includes professional liability defense.
Attorney
Legal Malpractice
Professional Liability
Insight
The New Home Warranty Act: Protections and Pitfalls
Louisiana’s New Home Warranty Act (“NHWA”) provides remedies to homeowners forcertain construction defects once the new home construction is complete. La. R.S. 9:3141 et seq. These protections can prove crucial to a homeowner’s ability to remedy defects that appear in their home, but the statutes providing these remedies establish strict guidelines that must be followed for the protections to apply. This generally post sets forth some of the key protections and obstacles/defenses that often arise. However, each specific claim should be considered under its own facts.
PROTECTIONS
The NHWA provides specific protections to homeowners. Each protection expires if not advanced within a set time-period.
Noncompliance/Defects- The NHWA protects against “any defect due to noncompliance with the building standards or other defects in materials or workmanship not regulated by building standards.” La. R.S. 9:3144(A)(1). This category includes defective construction or materials used in the construction. Even seemingly minor issues such as cracked plaster, yellowing paint, and “rubbing off” of new paint can give rise to a valid claim for recovery under this portion of the NHWA. See Bynog v. MRL, LLC, 05-122 (La. App. 3 Cir. 6/1/05), 903 So.2d 1197. Deviations from the “plans and specifications” for a home may also be recoverable. See Thorn v. Caskey, 32-310 (La. App. 2 Cir. 9/22/99), 745 So.2d 653.
Because this first protection is so broad, it also provides the shortest time-period to assert a claim: one year from the “warranty commencement date,” which is either the date legal title to the home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first. La. R.S. 9:3142(7).
Plumbing/Electrical/HVAC- The NHWA also protects the homeowner from defects in the plumbing, electrical, heating, cooling, and ventilating systems. These protections exclude equipment or appliances. A homeowner must bring a claim under this second category within two years of the warranty commencement date. La. R.S. 9:3144(A)(2).
Major Structural Problems- the NHWA allows recovery for major structural defects up to five years following the warranty commencement date. La. R.S. 9:3144(A)(3). For instance, recovery was allowed for a failing foundation under this provision in Campo v. Sternberger, 15-53 (La. App. 5 Cir. 11/19/15),179 So.3d 908.
PITFALLS
The most obvious – and probably most prevalent – pitfall is the timeliness of the claim. Courts do not hesitate to dismiss a claim if it is not timely filed.
The NHWA also requires that the homeowner give the builder written notice (via certified mail) of the defect before the homeowner attempts a repair, or before filing suit under the NHWA. La. R.S. 9:3145(A). This notice must be sent to the builder within one year after the homeowner has knowledge of the defect. Therefore, the one-year “clock” may begin to run when the homeowner gains knowledge of the problem even if the NHWA provides a longer time-period to advance the claim.
A failure by the homeowner to give timely notice can also diminish the claim even if it is brought within the deadlines. Under La. R.S. 9:3144(B)(4)(c), any damages caused by the homeowner’s failure to give the builder notice of the defect are not recoverable. In that circumstance, builders often contend that the severity of the problem could have been lessened had they been made aware.
RECOVERABLE DAMAGES
With some exceptions, damages under the NHWA are limited to the actual damages incurred by the homeowner, including attorney fees and court costs arising out of the builder’s violation. La. R.S. 9:3149. The actual damages cannot exceed the reasonable cost of repair or replacement necessary to cure the defect. If there are multiple defects across the home, damages are limited to the original purchase price of the home.
Consequential damages such as pain and suffering, mental anguish, or loss of use are generally not recoverable. See La. R.S. 9:3144(B); Iteld v. Four Corners Const., L.P., 12-1504 (La. App. 4 Cir. 6/5/13), 157 So.3d 702. However, there may be exceptions to this general rule under certain factual circumstances beyond the scope of this post.
CONCLUSION
The NHWA provides important remedies to homeowners. But, the New Home Warranty Act is complex and balances the competing interests of the homeowners and the builders. For this reason, a failure to follow the notice and timeliness requirements will often defeat the claim.
John Grinton, is a partner at Keogh Cox whose practice areas include commercial and construction litigation. When he is not practicing law, John spends most of his time with his wife and son, and their two dogs.
Louisiana
Property
Insight
Louisiana COVID-19 Immunity Laws
In response to the COVID-19 pandemic, the Louisiana legislature enacted and modified several statutes to limit the liability of individuals, businesses, and government agencies for exposure claims. However, the immunity is not absolute. While the immunity applies to “ordinary” negligence claims, it does not apply where acts are grossly negligent, wanton, or involve reckless misconduct. Further, as a condition to the protection afforded, the entity must show substantial compliance with the applicable COVID-19 procedures established by government authorities.
La. R.S. 9:2800.25, entitled “Limitation of liability for COVID-19” (the general immunity statute) provides that no person, business, or government entity shall be liable for injury or death resulting from exposure to COVID-19 through the performance of its business operations unless the entity failed to substantially comply with at least one set of procedures established by the federal, state, or local agency that governs the business operations, or the injury was caused by gross negligence or wanton, reckless misconduct. With respect to employer immunity, the statute provides that, regardless of whether an employee’s COVID-19 illness is covered under workers’ compensation law, the employee shall have no tort-based remedy against his employer unless the exposure was caused by an intentional act.
The exception to immunity in the general immunity statute calls into question the type of conduct that would rise to a level of gross negligence. Gross negligence is defined in Louisiana case law as “willful, wanton, reckless conduct that falls between intent to do wrong and ordinary negligence,” “lack of even slight care and diligence,” and “utter, complete or extreme lack of care.” While the definition does not provide a bright line rule, it reflects that the conduct must move well beyond simple negligence to defeat immunity.
For a business seeking to manage the risks arising from COVID-19, some best practices emerge: (1) monitor the COVID-19 procedures of government authorities to keep informed of the latest recommended or mandated procedures, (2) institute compliance protocols, (3) document and administer those procedures to show compliance, and (4) most obviously, avoid actions or omissions that may be construed as grossly negligent, wanton, or reckless.
Mary Anne Wolf is an engineer/attorney with a construction background who represents design professionals, contractors and others in construction litigation. She also gives seminars on the subject. She enjoys travel, yoga and encouraging her husband in his gardening and cooking endeavors.
Liability
Louisiana
Negligence
News
Keogh Cox enters Baton Rouge Bar Association’s annual cooking contest: Belly Up with the Bar 2020.
Keogh Cox has entered the Baton Rouge Bar Association’s annual cooking contest: Belly Up with the Bar 2020. Please visit the Belly Up website to vote and support. All proceeds benefit the Baton Rouge Bar Foundation’s Youth Education programs.
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Insight
Summary Judgment Dismissing Unwitnessed Workers’ Comp Accident Affirmed: No Corroborating Evidence
The recent decision in Gibson v. Wal-Mart Louisiana, LLC, 20-0033 (La. App. 4 Cir. 8/27/20), 2020 WL 507804 re-affirms that a workers’ compensation claim based on an unwitnessed accident is subject to pretrial dismissal where there is no corroborating evidence.
In Gibson, the plaintiff, a department manager for Walmart, claimed injury while picking up boxes. Although no one witnessed the incident, the plaintiff claimed that two managers working nearby were made aware of the accident and injuries almost immediately.
Walmart denied the claim in response to numerous “red flags.” For example, the two managers identified by the claimant denied any knowledge. Also, the first reference in a medical record to the alleged June accident came in mid-October.
Walmart filed a motion for summary judgment arguing that plaintiff did not satisfy her evidentiary burden. In response, Gibson countered that the conflict between her testimony, the co-workers’ testimony, and the medical records created genuine issues of material fact to be decided at trial. The OWC trial court granted summary judgment and the plaintiff appealed.
In affirming the dismissal, the Fourth Circuit Court determined that Gibson’s testimony, standing alone, did not create a genuine issue of material fact. The general rule regarding unwitnessed accidents in worker’s compensation cases is well defined. Under this rule, an employee may prove by his or her testimony alone that an unwitnessed accident occurred only if the employee can establish that: (1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident. Ardoin v. Firestone Polymers, L.L.C., 10-0245 (La. 1/19/11), 56 So. 3d 215, 218.
Because evidence such as the delay in medical treatment raised doubt and Gibson lacked other corroboration, the dismissal of her claim was upheld. Gibson reminds that questionable unwitnessed accident claims without corroborating evidence can and should be dismissed via pretrial motion, notwithstanding the “relaxed rules of evidence and procedure” in workers’ compensation courts.
Ed Stauss is a partner with Keogh Cox. His practice relates mainly to workers compensation defense and the subrogation recovery. Ed is an avid and long time fan of the professional and major college sports teams in the area. He also enjoys running year-round, from 2 milers & 5Ks in the spring and summer to half marathons and full marathons in the fall and winter.
Evidence
Injury
Workers' Compensation
Insight
First Circuit Orders Multiple AMOs Without Audio or Video Recording
Defendants often request an AMO (“Additional Medical Opinion,” formerly called “IME”) under La. Code of Civil Procedure article 1464 which grants the courts power to order the examination of a plaintiff’s physical or mental condition when in controversy. Increasingly, plaintiff’s counsel will object outright to such examinations or seek to impose onerous restrictions designed to limit or prevent the examination. In Sistrunk v. Florida Marine, LLC, et al, 20-0771 (La. App. 1 Cir. 9/28/20), 2020 WL 575645, the First Circuit rejected limitations sought by the plaintiff and imposed by the trial court.
In Sistrunk, the plaintiff alleged brain injury and psychological problems caused by a blow to the head. In view of the seriousness of the alleged injuries, the defense requested examinations by a neurologist, neuropsychologist, neurosurgeon, and psychiatrist. In response, the plaintiff agreed to examinations but only in areas plaintiff planned to offer medical testimony and under restrictions to include the presence of a third-party and audio or video recording. Although the trial court ordered the AMOs to move forward, it allowed the presence of a third-party who could then audio or videotape the exams. With respect to the neuropsychological examination, the trial court rejected observation by a third-party based upon industry standards which do not allow for such observation.
The defense in Sistrunk sought review from the First Circuit. Without comment, the First Circuit rejected the condition imposed by the trial court that the exams be captured through audio or videotaping. Sistrunk joins similar decisions such as Henry v. Barlow, 06-283 (La. App. 3 Cir. 8/9/06), 937 So. 2d. 895 which likewise prevented audio or videotaping of AMOs. In Henry, the court reasoned that the recording of an AMO would restrict the number of physicians willing to participate.
Brian has been doing defense work for the last 28 years. He has handled all types of defense matters over his career, but in recent years his practice has been focused in serious injury or damage cases and has worked extensively with experts involving complex cases, fire cases, and forensic work.
Medical
Trial Court
Insight
A Decade Old Article Finds New Life: Televised Testimony
Courts across the country now grapple with the changing face of trials in a time of social distancing and spikes of COVID-19 complicated by the confines of the courtroom. Attorneys and litigants must also adapt to this new “normal.” In this setting, an older law may help to bring new technology into the courtroom.
COVID-19 spawned the immediate use of videoconferencing and other technology in the courtroom. Fortunately, over a decade prior to the current pandemic, the Louisiana Legislature adopted Louisiana Civil Code of Procedure article 1633.1 which expressly provides for live televised testimony at a trial. Pursuant to Article 1633.1:
The court may order, upon a showing of appropriate safeguards, live testimony of a witness to be presented in open court by teleconference, video link, or other visual remote technology, if the witness is beyond the subpoena power of the court or when compelling circumstances are shown. The order may be entered at a pretrial conference or, in exceptional circumstances, on motion set for hearing at least ten days prior to trial or at another time that does not prejudice the parties.
The Article, titled “Live trial testimony by video,” does not limit the live video testimony feature only at trial. Commentary suggests that the term “trial” is intended to include evidentiary hearings on exceptions as well as summary matters. The comments further provide that a showing must be made to the court's satisfaction of appropriate safeguards, such as (1) reliable transmission procedures and image quality, (2) an orderly process for reference to exhibits by the witness and all counsel or parties conducting the examination, and (3) an absence of any outside influence on the witness during testimony. Even if all the parties agree to the use of live televised testimony, the Article nevertheless requires a court order.
Pursuant to the Article, the court may order televised testimony when “compelling circumstances are shown.” These circumstances may exist where a witness has a pre-existing condition or is restricted from live attendance by their physician. They may also exist for witnesses barred from work-related travel by their employer.
Although adopted in 2007, Article 1633.1 remains largely unused by both courts and litigants; it appears its time has come.
Louisiana
Trial Court
Insight
Louisiana Appeal Courts Prohibit Direct Negligence Claims Against Employer; US District Court Uses Rule to Limit Discovery
The 1st Circuit Court of Appeal recently ruled that a Plaintiff is prohibited from maintaining a direct negligence claim (negligent hire, negligent supervision, etc.) against an employer when the defendant/employer admits the employee was in the course and scope of the employment, stating:
“(A) plaintiff cannot maintain a direct negligence claim, such as negligent hiring, training, supervision, etc., against an employer, while simultaneously maintaining a claim against the negligent employee for which the plaintiff seeks to hold the employer vicariously liable, after the employer had admitted that the employee was in the course and scope of employment at the time of the alleged conduct.” See Elee v. White, - - So. 3d - - (La. App. 1 Cir 7/24/20) 2020 WL 4251974.
The ruling in Elee joins the Louisiana 5th Circuit court of appeal which entered a similar ruling. See Landry v. National Union Fire Insurance Company of Pittsburg, 289 So.3d 177 (La. App. 5 Cir. 12/30/19).
Meanwhile, the federal courts in Louisiana, under the Erie doctrine, reached differing results. In Thomas v. Chambers, 2019 WL 1670745 (E.D. La. 2019)(Vance, J.) and Dennis v. Collins, 2016 WL 6637973 (W.D. La. 2016 (Hicks, J.), the District Courts acknowledged the holding outlined above. However, Judge Cain, sitting in the Lake Charles division of the Western District ruled to the contrary. See Roe v. Safety National, 18-cv-1353 (W.D. La. 2020).
But, what happens when the defendants further admit sole fault for the accident? The result was discussed in Ferguson v. Lenoir et al. Notably, Magistrate Judge Hornsby, ruling on defendants’ request for a protective order, found that defendants admission of fault eliminated the need to reconcile the different rulings when it found that “(no) evidence of (employer’s) negligent hiring, training, supervision or entrustment can raise (employer’s) percentage of fault above 100.” See Case 5:17-cv-01570-SMH-MLH Document 90 Filed 06/30/20 (p 2 of 6). As a natural consequence of this rule, the court recognized that a protective order limiting further discovery was appropriate. Plaintiff appealed the magistrate’s Order, but US District Judge Hicks denied Plaintiff’s appeal and affirmed Judge Hornsby’s ruling. Case 5:17-cv-01570-SMH-MLH Document 122 Filed 09/22/20.
John has been practicing over 30 years and is a Senior Partner with firm where he serves on the Management Committee. He has devoted attention to non-profit boards dedicated to assisting at risk children. He enjoys time with his three children and grandchildren. He also enjoys tennis and hiking.
Discovery
Negligence